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HomeMy WebLinkAboutAdopt Ordinance No. 4169 Amending Huntington Beach Municipal �r �fi• „sue �; City of Huntington Beach File #: 18-627 MEETING DATE: 1/22/2019 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Michael E. Gates, City Attorney Lori Ann Farrell Harrison, Assistant City Manager PREPARED BY: Michael E. Gates, City Attorney Lori Ann Farrell Harrison, Assistant City Manager Subject: Adopt Ordinance No. 4169 Amending Huntington Beach Municipal Code Chapter 3.03 Relating to Professional Services Contracts Approved for introduction December 17, 2018 - Vote: 5-2 (Posey, Delgleize - No) Statement of Issue: City Council authorization is requested to amend the City of Huntington Beach Municipal Code Section 3.03 related to Professional Services to ensure competitive procurement processes for the City's professional services, including legal services, while still preserving confidentiality and the attorney-client privilege once an attorney firm has been selected to defend the City. These modifications will protect the City's attorney-client privilege during litigation while still providing checks and balances required via the City Charter to ensure the prudent stewardship of public funds. Financial Impact: Not applicable. Recommended Action: Adopt Ordinance No. 4169, "An Ordinance of the City of Huntington Beach Amending Sections 3.03.020, 3.03.060, and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code Relating to Professional Services Contracts." Alternative Action(s): Deny for introduction Ordinance No. 4169, "An Ordinance of the City of Huntington Beach Amending Chapter 3.03 of the Huntington Beach Municipal Code Relating to Professional Services Contracts." Analysis: The City Attorney is charged with representing the City when the City is a party to litigation. On some occasions, the City Attorney is required to use specialized attorneys or subject matter experts City of Huntington Beach Page 1 of 3 Printed on 1/16/2019 226 powered by LegistarT"" File #: 18-627 MEETING DATE: 1/22/2019 to assist in the litigation or specialized legal matter, such as ballistics experts, jury consultants, accident reconstruction experts and the like. The City Attorney needs to protect and keep confidential the City's defense strategy on cases, which includes hiring certain types of experts for a specific purpose. This legal strategy may in certain cases necessitate non-disclosure. The California Evidence Code, Code of Civil Procedure, Rules of Court and Professional Conduct, the Ralph M. Brown Act, as well as a host of other State Law and rules, govern the strict confidentiality of attorney work, including the retention of legal services and experts, which are both subject of attorney-client and attorney work product privileges. Pursuant to Section 401 of the Charter of the City of Huntington Beach, the City Manager is tasked with ensuring the financial condition of the City and to maintain a centralized purchasing and procurement system for all City offices, departments, and agencies. The Finance Department is responsible for providing financial management, oversight, monitoring and reporting for the City's complex financial resources, and to ensure compliance with State and local laws regarding the open and competitive bidding for City contracts paid for by taxpayers. Therefore, in order to protect the City's interests in maintaining attorney-client privilege while still providing checks and balances in the procurement of attorney and expert services, staff recommends modifications to enable the City Attorney to maintain confidentiality for attorney and expert contracts while litigation is pending. For attorney services under $100,000 all existing administrative regulations and Municipal Code requirements remain intact. City Council approval would be required for both attorney and expert services contracts exceeding $100,000, similar to other professional services contracts in the City, but would occur in Closed Session to maintain the attorney-client privilege. The standard budgetary and financial reviews and approvals by the Finance Department and compliance with the Code will still be performed for all agreements for attorney services and experts of any dollar amount to ensure fiscal controls. A new provision is also added to the Code to allow for a waiver of competitive bidding requirements in cases where there is substantial justification for utilizing a particular subject matter expert. A new "Expert Services Waiver Justification" Form has been created for this purpose. Such information will be provided to the City Council in Closed Session for expert services exceeding $100,000 per contracted expert and to the Finance Director and City Manager for services under $100,000. Staff recommends these changes to the Huntington Beach Municipal Code Chapter 3.03 regarding Professional Services to ensure the open competitive process for general attorney services, while protecting the attorney-client privilege and the use of subject matter experts during litigation and other legal matters. Environmental Status: Not applicable. Strategic Plan Goal: City of Huntington Beach Page 2 of 3 Printed on 1/16/2019 227 powered by Legistar"O File #: 18-627 MEETING DATE: 1/22/2019 Enhance and Maintain City Service Delivery Strengthen economic and financial sustainability Attachment(s): 1. Ordinance No. 4169, "An Ordinance of the City of Huntington Beach Amending Sections 3.03.020, 3.03.060, and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code Relating to Professional Services Contracts." 2. Legislative Draft of Ordinance No. 4169 3. Expert Services Waiver Justification Form. City of Huntington Beach Page 3 of 3 Printed on 1/16/2019 228 powered by Legistar7" ORDINANCE NO. 4169 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING SECTIONS 3.03.020, 3.03.060 AND 3.03.080 OF CHAPTER 3.03 OF THE HUNTINGTON BEACH MUNICIPAL CODE RELATING TO PROFESSIONAL SERVICES CONTRACTS The City Council of the City of Huntington Beach does hereby ordain as follows: WHEREAS, Sections 3.03.020, 3,03.060 and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code (HBMC) as well as AR 228 provides the process to enter into Professional Services Contracts in Huntington Beach. Generally, the process requires that prior to entering into a contract,the Director of the Department must request written proposals from not less than three available qualified consultants known as the "RFP"process. The Director must then evaluate the Consultants and can only hire the Consultant after vetting based on criteria established in HBMC Chapter 3.03. The City Attorney is charged representing the City when the City is a parry to litigation. On some occasions, litigation requires the City Attorney to engage professionals in the form of specialized attorneys or subject matter experts to assist in the litigation. The California Evidence Code, Code of Civil Procedure, Rules of Court and Professional Conduct,the Ralph M. Brown Act as well as a host of other State Law and rules govern the confidentiality of attorney work, including the retention of legal services and experts, which are both subject of attorney-client and attorney work product privileges. Pursuant to Section 401 of the Charter of the City of Huntington Beach, the City Manager is tasked with ensuring the financial condition of the City and to maintain a centralized purchasing and procurement system for all City offices, departments, and agencies. Sections 3.03.020, 3.03.060 and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code Chapter contracting rules are being modified to protect attorney-client and attorney work product privileges while still providing for the prudent stewardship of public funds. SECTION 1. Section 3.03.020 of the Huntington Beach Municipal Code is hereby amended to read as follows: 3.03.020 Definitions "Consultant" means any provider of services under this chapter as an individual, partnership, corporation or otherwise. "Director" means the department head or his or her designee as approved by City Council resolution, vested with the authority to administer the provisions of this chapter with respect to contracting for services. "Professional Services" means those services that involve the exercise of professional discretion and independent judgment based on an advanced or specialized knowledge, expertise or training gained by formal studies or experience or services which are not readily or efficiently procured by competitive bidding pursuant to Chapter 3.02. Such 1 ORDINANCE NO. 4169 services shall include but not be limited to those services provided by appraisers, architects, law firms retained for general legal counsel for the handling of lawsuits externally ("Retained Law Firm"), engineers, instructors, insurance advisors,physicians and other specialized consultants. "Expert Services" means uniquely and singularly qualified legal experts, medical experts, or other experts retained to assist with legal matters handled in-house by the City Attorney's Office. SECTION 2. Section 3.03.060 of the Huntington Beach Municipal Code is hereby amended to read as follows: 3.03.060 Procedure The procedure for the contracting of services is as follows: A. The director of the department primarily responsible for the particular project shall prepare a written statement defining the necessity and scope of the project, and submit it to the Director of Finance. Upon approval by the City Manager and the Director of Finance,the director shall prepare a written statement of the specifications, conditions and other requirements for the requested services and provide a copy to consultants who may wish to perform the service. B. Except as identified in Section 3.03.080,the director, or his or her designee, shall request written proposals from not less than three available qualified consultants. He or she shall thereafter conduct discussions with them regarding the project if such discussions are indicated by the complexity of the project, and based upon the selection guidelines established in Section 3.03.040 and the criteria established by him or her, select the consultant from the responsible proposals submitted to him or her, deemed to be the most highly qualified to provide the services required. C. If the procurement has been budgeted, contractual agreement shall be negotiated with the consultant subject to final approval as to form by the City Attorney, and as to content by the City Manager. D. If the procurement has not been budgeted,then the director shall prepare a request for appropriation for the City Manager to submit to the City Council in the usual prescribed manner. E. The City Attorney shall counsel and advise City officials in the implementation of this chapter. F. Retained Law Firm, Professional Services Agreements. The procurement of agreements for retained law firms for handling lawsuits externally shall follow the bid processes set forth in this Chapter and any Administrative Regulations related thereto as outlined in Sections 3.03.040 and 3.03.060(A-E) of the Code. To best protect the City's interests and confidentiality in legal matters, the following procedures will be utilized for procurement: 1. Any such agreement that exceeds$100,000 shall require City Council authorization, which may be obtained in Closed Session pursuant to the Ralph M. Brown Act. 2. Prior to submission to the City Council for review and approval in Closed Session, proposed agreements exceeding$100,000 must first obtain approval from the Director 2 18-6866/193582/MV ORDINANCE NO. 4169 of Finance to ensure availability of funds pursuant to the administrative regulations regarding professional services contracts. Executed agreements for Retained Law Firms for general counsel for the handling of lawsuits externally require authorized signatures from the Mayor and City Clerk just as with other professional services agreements that exceed$100,000. 3. The City Attorney will provide a quarterly report with a list of all Retained Law Firms and Expert Services contracts entered into for that quarter, in Closed Session, pursuant to the Ralph M. Brown Act, in a format and manner consistent with the quarterly reporting of other professional services contracts for the City. To ensure the protection of the City's interests and confidentiality in all legal matters, such quarterly reports will remain in a secure location and deemed Confidential. 4. To ensure the protection of the City's interests and confidentiality in all legal matters, executed Retained Law Firm and Expert Services agreements will remain in a secure location by the City Attorney, City Clerk and Director of Finance. SECTION 3. Section 3.03.080 of the Huntington Beach Municipal Code is hereby amended to read as follows: 3.03.080 Exempt and Emergency procedures The need for certain budgeted and emergency and exempted procurements are recognized. A. An emergency shall be deemed to exist if. 1. There is a great public calamity. 2. There is immediate need to prepare for national or local defense. 3. There is a breakdown in machinery or an essential service which requires the immediate attention of a professional in order to protect the public health, safety or welfare. 4.. An essential, departmental operation affecting the public health, safety or welfare would be greatly hampered if the prescribed procedure would cause an undue delay in the procurement of the needed services. In the case of an emergency which requires the immediate retention of a professional consultant, the City Manager may authorize the department director to secure by the open- market procedure, at the lowest obtainable price consistent with professional standards, any professional service regardless of the amount of the expenditure. B. Other Interagency Agreements. Procurements utilizing contractual agreements maintained by other public agencies for the provision of professional services to such agencies are exempt from the requirements of this chapter except that the provisions of Section 3.03.060(C)shall apply in every case and so long as such other agency complied with its own professional services contract requirements as approved by the department director. C. All contracts for performance of professional services for the City which exceed $30,000.00 shall be awarded in accordance with the procedures of this Code. All contracts for professional services which do not exceed$30,000.00,with prior approval of the Director of Finance or his or her designee, may be let without competitive bidding or negotiation. 3 18-6866/193582/MV ORDINANCE NO.4169 D. Contracts for Expert Services. 1. The City Attorney is authorized to enter into Expert Service Agreements on behalf of the City, for which an appropriation has been made, and subject to approval by the City Manager and Director of Finance. Such procurements may be let without competitive bidding or negotiation, not to exceed $100,000, for the contracting of Experts Services to assist with legal matters handled in-house by the City Attorney's Office, with supporting documentation justifying the need for a waiver of competitive bidding requirements for each Expert Service. 2. For procurements with Expert Services exceeding$100,000,City Council approval is required. City Council approval may be obtained during Closed Session, pursuant to the Ralph M. Brown Act. Executed agreements for Expert Services require authorized signatures from the Mayor and City Clerk just as with other professional services agreements that exceed$100,000. SECTION 4. This ordinance shall become effective 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the _9_ h - day of ( aru{a_rL/> , 201,E.f. Mayor ATTEST: APPROVED AS TO FORM: City Clerk q41 City Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: Y lihz— � 14 Gity Manager Assistant City Manager 4 18-6866/193582/MV Ord. No. 4169 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, ROBIN ESTANISLAU, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a Regular meeting thereof held on December 17,2018, and was again read to said City Council at a Regular meeting thereof held on January 22, 2019, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Brenden, Carr, Semeta, Peterson,Posey, Delgleize, Hardy NOES: None ABSENT: None ABSTAIN: None I,Robin Estanislau,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Wave on January 31,2019. n In accordance with the City Charter of said City. Robin Estanislau, Ci. Clerk City Clerk,and ex-officio Clerk Deputy City Clerk of the City Council of the City of Huntington Beach, California LEGISLATIVE DRAFT MUNICIPAL CODE Title 3 REVENUE AND FINANCE Chapter 3.03 PROFESSIONAL SERVICES SECTION 1. Sections 3.03.020, 3.03.060, and 3.03.080 of the Huntington Beach Municipal Code are hereby amended to read as follows: 3.03.020 Definitions "Consultant"means any provider of services under this chapter as an individual,partnership, corporation or otherwise. "Director" means the department head or his or her designee as approved by City Council resolution, vested with the authority to administer the provisions of this chapter with respect to contracting for services. "Professional Services" means those services that involve the exercise of professional discretion and independent judgment based on an advanced or specialized knowledge, expertise or training gained by formal studies or experience or services which are not readily or efficiently procured by competitive bidding pursuant to Chapter 3.02. Such services shall include but not be limited to those services provided by appraisers, architects, a#erxeys, law firms retained for general legal counsel for the handling of lawsuits externally ("Retained Law Firm"), engineers, instructors, insurance advisors, physicians and other specialized consultants. "Expert Services" means uniquely and singularly qualified legal experts, medical experts, or other experts retained to assist with legal matters handled in-house by the City Attorney's Office. (2047-5/76, 2590-1/83, 3375-11/97, 3511-10/01, 3604-6/03) 3.03.060 Procedure The procedure for the contracting of services is as follows: A. The director of the department primarily responsible for the particular project shall prepare a written statement defining the necessity and scope of the project, and submit it to the Director of Finance. Upon approval by the City Manager and the Director of Finance, the director shall prepare a written statement of the specifications, conditions and other requirements for the requested services and provide a copy to consultants who may wish to perform the service. B. Except as identified in Section 3.03.080,the director, or his or her designee, shall request written proposals from not less than three available qualified consultants. He or she shall thereafter conduct discussions with them regarding the project if such discussions are indicated by the complexity of the project, and based upon the selection guidelines established in Section 3.03.040 and the criteria established by him or her, select the consultant from the responsible proposals submitted to him or her, deemed to be the most highly qualified to provide the services required. C. If the procurement has been budgeted, contractual agreement shall be negotiated with the consultant subject to final approval as to form by the City Attorney, and as to content by the City Manager. D. If the procurement has not been budgeted,then the director shall prepare a request for appropriation for the City Manager to submit to the City Council in the usual prescribed manner. E. The City Attorney shall counsel and advise City officials in the implementation of this chapter. (2047-5/76, 2590-1/83, 3375-11/97, 3511-10/01, 3734-5/06, 3853-2/10) F. Retained Law Firm, Professional Services Agreements. The procurement of agreements for retained law firms for handling lawsuits externally shall follow the bid processes set forth in this Chapter and any Administrative Regulations related thereto as outlined in Sections 3.03.040 and 3.03.060(A-E) of the Code. To best protect the City's interests and confidentiality in legal matters, the following procedures will be utilized for procurement: 1. Any such agreement that exceeds $100,000 shall require City Council authorization,which may be obtained in Closed Session pursuant to the Ralph M. Brown Act. 2. Prior to submission to the City Council for review and approval in Closed Session,proposed agreements exceeding$100,000 must first obtain approval from the Director of Finance to ensure availability of funds pursuant to the administrative regulations regarding professional services contracts. Executed agreements for Retained Law Firms for general counsel for the handling of lawsuits externally require authorized signatures from the Mayor and City Clerk just as with other professional services agreements that exceed $100,000. 3. The City Attorney will provide a quarterly report with a list of all Retained Law Firms and Expert Services contracts entered into for that quarter, in Closed Session,pursuant to the Ralph M. Brown Act, in a format and manner consistent with the quarterly reporting of other professional services contracts for the City. To ensure the protection of the City's interests and confidentiality in all legal matters, such quarterly reports will remain in a secure location and deemed Confidential. 4. To ensure the protection of the City's interests and confidentiality in all legal matters, executed Retained Law Firm and Expert Services agreements will remain in a secure location by the City Attorney, City Clerk and Director of Finance. 3.03.080 Exempt and Emergency Procedures The need for certain budgeted and emergency and exempted procurements are recognized. A. An emergency shall be deemed to exist if- 1. There is a great public calamity. 2. There is immediate need to prepare for national or local defense. 3. There is a breakdown in machinery or an essential service which requires the immediate attention of a professional in order to protect the public health, safety or welfare. 4. An essential, departmental operation affecting the public health, safety or welfare would be greatly hampered if the prescribed procedure would cause an undue delay in the procurement of the needed services. In the case of an emergency which requires the immediate retention of a professional consultant, the City Manager may authorize the department director to secure by the open- market procedure, at the lowest obtainable price consistent with professional standards, any professional service regardless of the amount of the expenditure. B. Other Interagency Agreements. Procurements utilizing contractual agreements maintained by other public agencies for the provision of professional services to such agencies are exempt from the requirements of this chapter except that the provisions of Section 3.03.060(C)shall apply in every case and so long as such other agency complied with its own professional services contract requirements as approved by the department director. C. All contracts for performance of professional services for the City which exceed $30,000.00 shall be awarded in accordance with the procedures of this Code. All contracts for professional services which do not exceed$30,000.00,with prior approval of the Director of Finance or his or her designee, may be let without competitive bidding or negotiation. (2047-5/76, 3375-11/97, 3511-10/01, 3734-5/06, 3853-2/10) D. Contracts for Expert Services. 1. The City Attorney is authorized to enter into Expert Service Agreements on behalf of the City, for which an appropriation has been made, and subject to approval by the City Manager and Director of Finance. Such procurements may be let without competitive bidding or negotiation,not to exceed $100,000, for the contracting of Experts Services to assist with legal matter handled in- house by the City Attorney's Office,with supporting documentation justifying the need for a waiver of competitive bidding requirements for each Expert Service. 2. For procurements with Expert Services exceeding $100,000, City Council approval is required. City Council approval may be obtained during Closed Session, pursuant to the Ralph M. Brown Act. Executed agreements for Expert Services require authorized signatures from the Mayor and City Clerk just as with other professional services agreements that exceed $100,000. Administrative Services Finance Department OR OP/OC CITY OF HUNTINGTON BEACH EXPERT SERVICES JUSTIFICATION WAIVER ` Singular Uniquely Qualified Expert Services for Litigation This justification document consists of two(2)pages. All information must be provided and all questions must be answered. The"Required Approvals" section must include a date for each signature,as appropriate for the transaction. Requesting Department Information Requestor Name: Division Manager: (Type names. Do not sign.) Department: Department Head: (Type names. Do not sign. Must be same as signature below. Department Contact Information Contact Name: Street Address: Telephone FAX: Shipping Address: Cellular phone: Required Contact Information., Contractor/Expert Name: Contractor/Expert Address: Original Contract Amount:* Amendment Amount:* (if applicable) New Contract Amount: " (*Includes original contract and previously (*Includes original contract and all amendments, approved amendments) (*Current amendment only) including current amendment Provide a brief description of the services the contractor.will provide: Contract T e and;;Term P Contract Type: Contract Term: What account number will be used to purchase Begin: Bus Unit Select One: ❑ Expert Witness End: Obj. Code (Not to exceed 3 year term) fit, Department Head Finance Manager Chief Financial Officer City Manager ❑Approved ❑ Denied ❑Approved ❑ Denied ❑Approved ❑ Denied ❑Approved ❑ Denied Executive Director/Date Finance Manager/Date Chief Financial Officer./Date City Manager/Date Mayor ❑Approved ❑ Denied Mayor./Date (Transactions exceeding$100,000 must be council approved) Remit completed form to: Finance Department 1025 12/12/2018 1 Administrative Services Finance Department Complete responses must be provided for all of the following items. A. THE SERVICE REQUESTED IS RESTRICTED TO ONE EXPERT FOR THE REASONS STATED BELOW: 1. Why is the acquisition restricted to this expert? (Explain why the acquisition cannot be competitively bid). 2. Provide the background of events leading to this acquisition. 3. Describe the uniqueness of the acquisition (why was the service chosen?) 4. What are the consequences of not contracting with the proposed expert? 5. What market research was conducted to substantiate no competition, including evaluation of other items considered? (Provide a narrative of your efforts to identify other similar or appropriate services, including a summary of how the department concluded that such alternatives are either inappropriate or unavailable. The names and addresses of experts contacted and the reasons for not considering them must be included OR an explanation of why there are no other experts to contact or are inadequate.) B. PRICE ANALYSIS 1. How was the price offered determined to be fair and reasonable? (Explain what the basis was for comparison and include cost analyses as applicable.) 2. Describe any cost savings realized or costs avoided by acquiring the services from this expert. 1026 12/12/2018 2 fI7PR6✓ram Fbl2 I N77Q4 r)Le w � City of Huntington Beach VZE-Alb File #: 18-617 MEETING DATE: 12/17/2018 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Michael E. Gates, City Attorney Lori Ann Farrell Harrison, Assistant City Manager PREPARED BY: Michael E. Gates, City Attorney Lori Ann Farrell Harrison, Assistant City Manager Subject: Approve for Introduction Ordinance No. 4169 Amending Huntington Beach Municipal Code Chapter 3.03 Relating to Professional Services Contracts Statement of Issue: City Council authorization is requested to amend the City of Huntington Beach Municipal Code Section 3.03 related to Professional Services to ensure competitive procurement processes for the City's professional services, including legal services, while still preserving confidentiality and the attorney-client privilege once an attorney firm has been selected to defend the City. These modifications will protect the City's attorney-client privilege during litigation while still providing checks and balances required via the City Charter to ensure the prudent stewardship of public funds. Financial Impact: Not applicable. Recommended Action: Approve for introduction Ordinance No. 4169, "An Ordinance of the City of Huntington Beach Amending Sections 3.03.020, 3.03.060, and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code Relating to Professional Services Contracts." Alternative Action(s): Deny for introduction Ordinance No. 4169, "An Ordinance of the City of Huntington Beach Amending Chapter 3.03 of the Huntington Beach Municipal Code Relating to Professional Services Contracts." Analysis: The City Attorney is charged with representing the City when the City is a party to litigation. On some occasions, the City Attorney is required to use specialized attorneys or subject matter experts to assist in the litigation or specialized legal matter, such as ballistics experts, jury consultants, accident reconstruction experts and the like. City of Huntington Beach Page 1 of 3 Printed on 12/12/2018 1018 powered by Legistar"" File #: 18-617 MEETING DATE: 12/17/2018 The City Attorney needs to protect and keep confidential the City's defense strategy on cases, which includes hiring certain types of experts for a specific purpose. This legal strategy may in certain cases necessitate non-disclosure. The California Evidence Code, Code of Civil Procedure, Rules of Court and Professional Conduct, the Ralph M. Brown Act, as well as a host of other State Law and rules, govern the strict confidentiality of attorney work, including the retention of legal services and experts, which are both subject of attorney-client and attorney work product privileges. Pursuant to Section 401 of the Charter of the City of Huntington Beach, the City Manager is tasked with ensuring the financial condition of the City and to maintain a centralized purchasing and procurement system for all City offices, departments, and agencies. The Finance Department is responsible for providing financial management, oversight, monitoring and reporting for the City's complex financial resources, and to ensure compliance with State and local laws regarding the open and competitive bidding for City contracts paid for by taxpayers. Therefore, in order to protect the City's interests in maintaining attorney-client privilege while still providing checks and balances in the procurement of attorney and expert services, staff recommends modifications to enable the City Attorney to maintain confidentiality for attorney and expert contracts while litigation is pending. For attorney services under $100,000 all existing administrative regulations and Municipal Code requirements remain intact. City Council approval would be required for both attorney and expert services contracts exceeding $100,000, similar to other professional services contracts in the City, but would occur in Closed Session to maintain the attorney-client privilege. The standard budgetary and financial reviews and approvals by the Finance Department and compliance with the Code will still be performed for all agreements for attorney services and experts of any dollar amount to ensure fiscal controls. A new provision is also added to the Code to allow for a waiver of competitive bidding requirements in cases where there is substantial justification for utilizing a particular subject matter expert. A new "Expert Services Waiver Justification" Form has been created for this purpose. Such information will be provided to the City Council in Closed Session for expert services exceeding $100,000 per contracted expert and to the Finance Director and City Manager for services under $100,000. Staff recommends these changes to the Huntington Beach Municipal Code Chapter 3.03 regarding Professional Services to ensure the open competitive process for general attorney services, while protecting the attorney-client privilege and the use of subject matter experts during litigation and other legal matters. Environmental Status: Not applicable. Strategic Plan Goal: Enhance and Maintain City Service Delivery City of Huntington Beach Page 2 of 3 Printed on 12/12/2018 1019 powered by LegistarTV File #: 18-617 MEETING DATE: 12/17/2018 Strengthen economic and financial sustainability Attachment(s): 1. Ordinance No. 4169, "An Ordinance of the City of Huntington Beach Amending Sections 3.03.020, 3.03.060, and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code Relating to Professional Services Contracts." 2. Legislative Draft of Ordinance No. 4169 3. Expert Services Waiver Justification Form. City of Huntington Beach Page 3 of 3 Printed on 12/12/2018 1020 powered by LeaistarTM ORDINANCE NO. 4169 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING SECTIONS 3.03.020, 3.03.060 AND 3.03.080 OF CHAPTER 3.03 OF THE HUNTINGTON BEACH MUNICIPAL CODE RELATING TO PROFESSIONAL SERVICES CONTRACTS The City Council of the City of Huntington Beach does hereby ordain as follows: WHEREAS, Sections 3.03.020, 3.03.060 and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code (HBMC) as well as AR 228 provides the process to enter into Professional Services Contracts in Huntington Beach. Generally, the process requires that prior to entering into a contract, the Director of the Department must request written proposals from not less than three available qualified consultants known as the "RFP"process. The Director must then evaluate the Consultants and can only hire the Consultant after vetting based on criteria established in HBMC Chapter 3.03. The City Attorney is charged representing the City when the City is a party to litigation. On some occasions, litigation requires the City Attorney to engage professionals in the form of specialized attorneys or subject matter experts to assist in the litigation. The California Evidence Code, Code of Civil Procedure, Rules of Court and Professional Conduct, the Ralph M. Brown Act as well as a host of other State Law and rules govern the confidentiality of attorney work, including the retention of legal services and experts, which are both subject of attorney-client and attorney work product privileges. Pursuant to Section 401 of the Charter of the City of Huntington Beach, the City Manager is tasked with ensuring the financial condition of the City and to maintain a centralized purchasing and procurement system for all City offices, departments, and agencies. Sections 3.03.020, 3.03.060 and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code Chapter contracting rules are being modified to protect attorney-client and attorney work product privileges while still providing for the prudent stewardship of public funds. SECTION 1. Section 3.03.020 of the Huntington Beach Municipal Code is hereby amended to read as follows: 3.03.020 Definitions "Consultant" means any provider of services under this chapter as an individual, partnership, corporation or otherwise. "Director" means the department head or his or her designee as approved by City Council resolution, vested with the authority to administer the provisions of this chapter with respect to contracting for services. "Professional Services" means those services that involve the exercise of professional discretion and independent judgment based on an advanced or specialized knowledge, expertise or training gained by formal studies or experience or services which are not readily or efficiently procured by competitive bidding pursuant to Chapter 3.02. Such 1 ORDINANCE NO. 4169 services shall include but not be limited to those services provided by appraisers, architects, law firms retained for general legal counsel for the handling of lawsuits externally ("Retained Law Firm"), engineers, instructors, insurance advisors, physicians and other specialized consultants. "Expert Services" means uniquely and singularly qualified legal experts, medical experts, or other experts retained to assist with legal matters handled in-house by the City Attorney's Office. SECTION 2. Section 3.03.060 of the Huntington Beach Municipal Code is hereby amended to read as follows: 3.03.060 Procedure The procedure for the contracting of services is as follows: A. The director of the department primarily responsible for the particular project shall prepare a written statement defining the necessity and scope of the project, and submit it to the Director of Finance. Upon approval by the City Manager and the Director of Finance, the director shall prepare a written statement of the specifications, conditions and other requirements for the requested services and provide a copy to consultants who may wish to perform the service. B. Except as identified in Section 3.03.080,the director, or his or her designee, shall request written proposals from not less than three available qualified consultants. He or she shall thereafter conduct discussions with them regarding the project if such discussions are indicated by the complexity of the project, and based upon the selection guidelines established in Section 3.03.040 and the criteria established by him or her, select the consultant from the responsible proposals submitted to him or her, deemed to be the most highly qualified to provide the services required. C. If the procurement has been budgeted, contractual agreement shall be negotiated with the consultant subject to final approval as to form by the City Attorney, and as to content by the City Manager. D. If the procurement has not been budgeted,then the director shall prepare a request for appropriation for the City Manager to submit to the City Council in the usual prescribed manner. E. The City Attorney shall counsel and advise City officials in the implementation of this chapter. F. Retained Law Firm, Professional Services Agreements. The procurement of agreements for retained law firms for handling lawsuits externally shall follow the bid processes set forth in this Chapter and any Administrative Regulations related thereto as outlined in Sections 3.03.040 and 3.03.060(A-E) of the Code. To best protect the City's interests and confidentiality in legal matters, the following procedures will be utilized for procurement: 1. Any such agreement that exceeds $100,000 shall require City Council authorization, which may be obtained in Closed Session pursuant to the Ralph M. Brown Act. 2. Prior to submission to the City Council for review and approval in Closed Session, proposed agreements exceeding$100,000 must first obtain approval from the Director 2 18-6866/193582/MV ORDINANCE NO. 4169 of Finance to ensure availability of funds pursuant to the administrative regulations regarding professional services contracts. Executed agreements for Retained Law Firms for general counsel for the handling of lawsuits externally require authorized signatures from the Mayor and City Clerk just as with other professional services agreements that exceed $100,000. 3. The City Attorney will provide a quarterly report with a list of all Retained Law Firms and Expert Services contracts entered into for that quarter, in Closed Session, pursuant to the Ralph M. Brown Act, in a format and manner consistent with the quarterly reporting of other professional services contracts for the City. To ensure the protection of the City's interests and confidentiality in all legal matters, such quarterly reports will remain in a secure location and deemed Confidential. 4. To ensure the protection of the City's interests and confidentiality in all legal matters, executed Retained Law Firm and Expert Services agreements will remain in a secure location by the City Attorney, City Clerk and Director of Finance. SECTION 3. Section 3.03.080 of the Huntington Beach Municipal Code is hereby amended to read as follows: 3.03.080 Exempt and Emergency Procedures The need for certain budgeted and emergency and exempted procurements are recognized. A. An emergency shall be deemed to exist if: 1. There is a great public calamity. 2. There is immediate need to prepare for national or local defense. 3. There is a breakdown in machinery or an essential service which requires the immediate attention of a professional in order to protect the public health, safety or welfare. 4.. An essential, departmental operation affecting the public health, safety or welfare would be greatly hampered if the prescribed procedure would cause an undue delay in the procurement of the needed services. In the case of an emergency which requires the immediate retention of a professional consultant, the City Manager may authorize the department director to secure by the open- market procedure, at the lowest obtainable price consistent with professional standards, any professional service regardless of the amount of the expenditure. B. Other Interagency Agreements. Procurements utilizing contractual agreements maintained by other public agencies for the provision of professional services to such agencies are exempt from the requirements of this chapter except that the provisions of Section 3.03.060(C)shall apply in every case and so long as such other agency complied with its own professional services contract requirements as approved by the department director. C. All contracts for performance of professional services for the City which exceed $30,000.00 shall be awarded in accordance with the procedures of this Code. All contracts for professional services which do not exceed$30,000.00,with prior approval of the Director of Finance or his or her designee, may be let without competitive bidding or negotiation. 3 18-6866/193582/MV ORDINANCE NO.4169 D. Contracts for Expert Services. 1. The City Attorney is authorized to enter into Expert Service Agreements on behalf of the City, for which an appropriation has been made, and subject to approval by the City Manager and Director of Finance. Such procurements may be let without competitive bidding or negotiation, not to exceed $100,000, for the contracting of Experts Services to assist with legal matters handled in-house by the City Attorney's Office, with supporting documentation justifying the need for a waiver of competitive bidding requirements for each Expert Service. 2. For procurements with Expert Services exceeding$100,000,City Council approval is required. City Council approval may be obtained during Closed Session, pursuant to the Ralph M. Brown Act. Executed agreements for Expert Services require authorized signatures from the Mayor and City Clerk just as with other professional services agreements that exceed$100,000. SECTION 4. This ordinance shall become effective 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of (_ GZi2GlCGrL1> , 201AI Mayor ATTEST: APPROVED AS TO FORM: City Clerk <Ze-1 City Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: Z_ Gity Manager Assistant City Manager 4 18-6866/193582/NIV Ord. No. 4169 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, ROBIN ESTANISLAU, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a Regular meeting thereof held on December 17, 2018, and was again read to said City Council at a Regular meeting thereof held on January 22,2019, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Brenden, Carr, Semeta, Peterson, Posey, Delgleize, Hardy NOES: None ABSENT: None ABSTAIN: None I,Robin Estanislau,CITY CLERK of the City of Huntington Beach and ex-ofcio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Wave on January 31,2019. n In accordance with the City Charter of said City. 6d�/6A1 Robin Estanislau, City Clerk City Clerk,and ex-officio Clerk Deputy city clerk of the City Council of the City of Huntington Beach, California LEGISLATIVE DRAFT MUNICIPAL CODE Title 3 REVENUE AND FINANCE Chapter 3.03 PROFESSIONAL SERVICES SECTION 1. Sections 3.03.020, 3.03.060, and 3.03.080 of the Huntington Beach Municipal Code are hereby amended to read as follows: 3.03.020 Definitions "Consultant"means any provider of services under this chapter as an individual, partnership, corporation or otherwise. "Director" means the department head or his or her designee as approved by City Council resolution, vested with the authority to administer the provisions of this chapter with respect to contracting for services. "Professional Services" means those services that involve the exercise of professional discretion and independent judgment based on an advanced or specialized knowledge, expertise or training gained by formal studies or experience or services which are not readily or efficiently procured by competitive bidding pursuant to Chapter 3.02. Such services shall include but not be limited to those services provided by appraisers, architects,a#emeys, law firms retained for general legal counsel for the handling of lawsuits externally ("Retained Law Firm"), engineers, instructors, insurance advisors, physicians and other specialized consultants. "Expert Services" means uniquely and singularly qualified legal experts, medical experts, or other experts retained to assist with legal matters handled in-house by the City Attorney's Office. (2047-5/76, 2590-1/83, 3375-11/97, 3511-10/01, 3604-6/03) 3.03.060 Procedure The procedure for the contracting of services is as follows: A. The director of the department primarily responsible for the particular project shall prepare a written statement defining the necessity and scope of the project, and submit it to the Director of Finance. Upon approval by the City Manager and the Director of Finance, the director shall prepare a written statement of the specifications, conditions and other requirements for the requested services and provide a copy to consultants who may wish to perform the service. B. Except as identified in Section 3.03.080,the director, or his or her designee, shall request written proposals from not less than three available qualified consultants. He or she shall thereafter conduct discussions with them regarding the project if such discussions are indicated by the complexity of the project, and based upon the selection guidelines established in Section 3.03.040 and the criteria established by him or her, select the consultant from the responsible proposals submitted to him or her, deemed to be the most highly qualified to provide the services required. C. If the procurement has been budgeted, contractual agreement shall be negotiated with the consultant subject to final approval as to form by the City Attorney, and as to content by the City Manager. D. If the procurement has not been budgeted,then the director shall prepare a request for appropriation for the City Manager to,submit to the City Council in the usual prescribed manner. E. The City Attorney shall counsel and advise City officials in the implementation of this chapter. (2047-5/76, 2590-1/83, 3375-11/97, 3511-10/01, 3734-5/06, 3853-2/10) F. Retained Law Firm, Professional Services Agreements. The procurement of agreements for retained law firms for handling lawsuits externally shall follow the bid processes set forth in this Chapter and any Administrative Regulations related thereto as outlined in Sections 3.03.040 and 3.03.060(A-E) of the Code. To best protect the City's interests and confidentiality in legal matters, the following procedures will be utilized for procurement: 1. Any such agreement that exceeds $100,000 shall require City Council authorization,which may be obtained in Closed Session pursuant to the Ralph M. Brown Act. 2. Prior to submission to the City Council for review and approval in Closed Session,proposed agreements exceeding$100,000 must first obtain approval from the Director of Finance to ensure availability of funds pursuant to the administrative regulations regarding professional services contracts. Executed agreements for Retained Law Firms for general counsel for the handling of lawsuits externally require authorized signatures from the Mayor and City Clerk just as with other professional services agreements that exceed $100,000. 3. The City Attorney will provide a quarterly report with a list of all Retained Law Firms and Expert Services contracts entered into for that quarter, in Closed Session, pursuant to the Ralph M. Brown Act, in a format and manner consistent with the quarterly reporting of other professional services contracts for the City. To ensure the protection of the City's interests and confidentiality in all legal matters, such quarterly reports will remain in a secure location and deemed Confidential. 4. To ensure the protection of the City's interests and confidentiality in all legal matters, executed Retained Law Firm and Expert Services agreements will remain in a secure location by the City Attorney, City Clerk and Director of Finance. 3.03.080 Exempt and Emergency Procedures The need for certain budgeted and emergency and exempted procurements are recognized. A. An emergency shall be deemed to exist if: 1. There is a great public calamity. 2. There is immediate need to prepare for national or local defense. 3. There is a breakdown in machinery or an essential service which requires the immediate attention of a professional in order to protect the public health, safety or welfare. 4. An essential, departmental operation affecting the public health, safety or welfare would be greatly hampered if the prescribed procedure would cause an undue delay in the procurement of the needed services. In the case of an emergency which requires the immediate retention of a professional consultant, the City Manager may authorize the department director to secure by the open- market procedure, at the lowest obtainable price consistent with professional standards, any professional service regardless of the amount of the expenditure. B. Other Interagency Agreements. Procurements utilizing contractual agreements maintained by other public agencies for the provision of professional services to such agencies are exempt from the requirements of this chapter except that the provisions of Section 3.03.060(C)shall apply in every case and so long as such other agency complied with its own professional services contract requirements as approved by the department director. C. All contracts for performance of professional services for the City which exceed $30,000.00 shall be awarded in accordance with the procedures of this Code. All contracts for professional services which do not exceed$30,000.00,with prior approval of the Director of Finance or his or her designee, may be let without competitive bidding or negotiation. (2047-5/76, 3375-11/97, 3511-10/01, 3734-5/06, 3853-2/10) D. Contracts for Expert Services. 1. The City Attorney is authorized to enter into Expert Service Agreements on behalf of the City, for which an appropriation has been made, and subject to approval by the City Manager and Director of Finance. Such procurements may be let without competitive bidding or negotiation, not to exceed $100,000, for the contracting of Experts Services to assist with legal matter handled in- house by the City Attorney's Office,with supporting documentation justifying the need for a waiver of competitive bidding requirements for each Expert Service. 2. For procurements with Expert Services exceeding $100,000, City Council approval is required. City Council approval may be obtained during Closed Session, pursuant to the Ralph M. Brown Act. Executed agreements for Expert Services require authorized signatures from the Mayor and City Clerk just as with other professional services agreements that exceed $100,000. Administrative Services Finance Department OR OP/OC CITY OF HUNTINGTON BEACH EXPERT SERVICES JUSTIFICATION WAIVER R Singular Uniquely Qualified Expert Services for Litigation i This justification document consists of two(2)pages. All information must be provided and all questions must be answered. The"Required Approvals" section must include a date for each signature,as appropriate for the transaction. Requesting Department Information Requestor Name: Division Manager: (Type names. Do not sign.) Department: Department Head: (Type names. Do not sign. Must be same as signature below. Department Contact Information Contact Name: Street Address: Telephone FAX: Shipping Address: Cellular hone: '3�H d� mug II0.� uired Contact,lnfoimat,on �6 1011I„�„' Contractor/Expert Name: Contractor/Expert Address: Original Contract Amount:" Amendment Amount:* (if applicable) New Contract Amount: (`Includes original contract and previously (*Includes original contract and all amendments, approved amendments) `Current amendment only) including current amendment Provide a,br 'f description of the`sery ces;the contractor wily;"mrovlde: x _ Contractor , e and Term �. Contract Type: Contract Term: What account number will be used to purchase Select One: ❑ Expert Witness Begin: Bus Unit End: Obj. Code (Not to exceed 3 year term) re �Innfi,e mt�INrr�'g rl �p ? � t Re uiredA royals , is r �_ �r �w ._.�_.� _ UL __ Department Head Finance Manager Chief Financial Officer City Manager ❑Approved ❑ Denied ❑Approved ❑ Denied ❑Approved ❑ Denied ❑Approved ❑ Denied Executive Director/Date Finance Manager/Date Chief Financial Officer./Date City Manager/Date Mayor ❑Approved ❑ Denied Mayor./Date (Transactions exceeding$100,000 must be council approved) Remit completed form to. Finance Department 1025 12/12/2018 1 Administrative Services Finance Department Complete responses must be provided for all of the following items. A. THE SERVICE REQUESTED IS RESTRICTED TO ONE EXPERT FOR THE REASONS STATED BELOW: 1. Why is the acquisition restricted to this expert? (Explain why the acquisition cannot be competitively bid). 2. Provide the background of events leading to this acquisition. 3. Describe the uniqueness of the acquisition (why was the service chosen?) 4. What are the consequences of not contracting with the proposed expert? 5. What market research was conducted to substantiate no competition, including evaluation of other items considered? (Provide a narrative of your efforts to identify other similar or appropriate services,including a summary of how the department concluded that such alternatives are either inappropriate or unavailable. The names and addresses of experts contacted and the reasons for not considering them must be included OR an explanation of why there are no other experts to contact or are inadequate.) B. PRICE ANALYSIS 1. How was the price offered determined to be fair and reasonable? (Explain what the basis was for comparison and include cost analyses as applicable.) 2. Describe any cost savings realized or costs avoided by acquiring the services from this expert. 1026 12/12/2018 2 Estanislau, Robin From: Mark Bixby <mark@bixby.org> Sent: Wednesday, December 12, 2018 7:52 PM To: Agenda Comment; CITY COUNCIL; Estanislau, Robin Subject: Dec 17th CC agenda comments-- OPPOSE#35 Dear city council, I wholeheartedly OPPOSE item #35 on the 12/17/2018 city council agenda. It exempts the City Attorney's Office (CAO)from following regular city procurement processes for many contracts for outside legal services. Without competitive bidding and public oversight,there's no assurance of getting legal services for the best price from the most qualified outside consultants. I want enforcement efforts to be more than election year grandstanding and to be financially sustainable over the long haul. Competitive bidding will be key to that, but#35 aims to prevent competition and transparency.#35 will end up costing the city more for legal services. The argument the staff report attempts to make that legal services procurement transparency will compromise investigations is unsupported and ultimately specious. City strategy will be laid bare for all to see for the very first administrative orjudicial prosecution of each violation category. Item#35 eliminates public oversight over CAO spending on outside legal consultants. Sure, periodic reports will be made to the city council during closed session, but there's still no public oversight outside of city hall on how our tax dollars are being spent for those consultants. Anybody who reads newspapers regularly(I'm hopelessly quaint, LOL) knows that when city procurement operates in the shadows,contracting abuses such as nepotism and cronyism can result, short-changing the taxpayers financially, and possibly hobbling the intended enforcement efforts if unqualified consultants are being hired. Eliminating transparency and public oversight over CAO legal services contracting is a bad idea.Just say NO. Mark Bixby 17451 Hillgate Ln Huntington Beach, CA 92649-4707 SUPPLEMENTAL COMMUNICATION A DO: Agenda Hem No.: l�"� j SUPPLEMENTAL Estanislau, Robin COMMUNICATION From: Julie Bixby<julie@bixby.org> Meeft Date, (a— ��— Sent: Thursday, December 13, 2018 10:09 AM To: CITY COUNCIL; Estanislau, Robin; Agenda Comment Subject: Item#35 Dec 17, 2018 AgerWs Ibm No.: Dear City Council members, These are comments I previously submitted when this item was on the agenda in November 2018. 1 am resubmitting them for your reference, and also for the benefit of Councilwoman Carr, who was not on the Council the last time this was discussed. I have some questions and concerns regarding agenda item #35 (introduction Ordinance No. 4169). I hope the following topics will be addressed during the Council meeting before a vote is taken so that A) the public can better understand the justification for the item, and B) a more informed opinion can be reached by the Council members as to whether or not this new policy should be adopted. First of all, the big concern here is the lack of transparency this new policy proposes, which effectively repeals the oversight role the Council plays in spending decisions. The fiscally prudent thing to do is to get responsible, vetted bids, and this proposal apparently eliminates that for legal services. How is the Council or public to know if it's getting the best bang for its buck? Not to say that wasteful spending will definitely occur with adoption of this proposed ordinance, but it does open the door a crack to the possibility, and the public -- which, after all, elects the City Attorney -- would be none the wiser. The staff report also says this proposal is due in part to the Brown Act -- and yet the Brown Act's primary concern is for government transparency, a seeming contradiction. The rather terse "Analysis" in the staff report does not resolve this discrepancy. Questions raised by this agenda item: 1) The staff report doesn't say what other cities do. It would be incredibly helpful if it explained something like "Huntington Beach is the only Orange County city that doesn't have this policy", or if it noted that other California cities of similar size have similar practices (and *list* those specific cities) -- as the case may be. How do we know if HB is an outlier or not, and really should be getting its act together as the staff report claims, if there is no basis for comparison? 2) If the Crty�r°ea11y'isrout,of compliance with so many statutes ("a host of other State Law and rules") as the staff report claims, why has the City been allowed to get away with it all this time? Why'is there no apparent penalty? City Code 3.03.080 looks like it was last updated in 2010, and no one has said anything until now. 3) The City has been making a big to-do in recent years about being a Charter City -- to the point that the City has filed suit a few times to say it is exempt from some State laws due to its Charter status. Agenda item #35 says it's to bring the City in compliance with State law, but that then begs the question: Why is a Charter City exempt from some State laws but not others? Being in compliance with State law used to be straightforward, but thanks to the lawsuits, now there is uncertainty whether it's required all the time or not. [Perhaps future proposed Ordinances need a new RCA section on Charter City impact?]!. In conclusion, I hope the Council will do its due diligence in getting answers to these questions and concerns before potentially loosening its oversight of taxpayer dollars. Thank you. Julie Bixby Huntington Beach, CA Engage Romulan sig cloaking device... 2 Work Order: #131476 12 Opened:/ 18 Closed: This issue is new Est. Resolution Date: By Dan Jamieson Agenda & Public Hearing Comments Email danjamieson4@hotmail com SUB TYPE Phone City Council Meeting Device STREET ADDRESS Media Submitted None COMMENTS&ADDITIONAL NOTES Oppose Item 35,CC meeting 12-17-2018 Dear Council:I oppose the approval of item 35, "Approve for introduction Ordinance No.4169,Amending Huntington Beach Municipal Code Chapter 3.03 Relating to Professional Services Contracts."This proposal seems to be an unwise action to backtrack on transparency,and open the checkbook for the City Attorney to engage in speculative lawsuits.The reasoning for the proposal seems weak,as most City litigation does not involve unique legal strategies that should be hidden from opponents. Hiding legal contracts from public view would go directly against the City's goal and Councilmembers'promises to improve transparency.Increasing the RFP exemption to $100,000 contracts or smaller is an open invitation to waste and frivolous litigation.The city attorney's office has already enjoyed steady budget increases over the past three years,to more than$3 million in fiscal year 16/17.Huntington Beach taxpayers should not be funding ever-increasing litigation based on novel legal theories that are outside the normal scope of municipal cases.I urge a NO vote on this item.Sincerely,Dan Jamieson Huntington Beach SUPPLEMENTAL COMMUNICATION Meng Date: 1� eti Agenda ftern%, ;�)5 C _ y City of Huntington Beach �ipprnY (J or s Gr m-e"d eX .Z lSen �, iQe-kr No� er s►`de-r o p-e r Pr ess 6-ph ms File #: 18-472 MEETING DATE: 11/5/2018 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Michael E. Gates, City Attorney PREPARED BY: Michael E. Gates, City Attorney Subject: Approve for introduction Ordinance No. 4169 amending Sections 3.03.020 and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code (HBMC) relating to Professional Services Contracts Statement of Issue: The City's process to secure Professional Services conflicts with State law requirements concerning the City Attorney's ability to retain outside legal services and subject matter experts. Financial Impact: None. Recommended Action: Approve for introduction Ordinance No. 4169, "An Ordinance of the City of Huntington Beach Amending Sections 3.03.020 and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code Relating to Professional Services Contracts" excluding legal service contracts from bidding requirements. Alternative Action(s): Do not approve for introduction Ordinance No. 4169, "An Ordinance of the City of Huntington Beach Amending Sections 3.03.020 and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code Relating to Professional Services Contracts" excluding legal service contracts from bidding requirements. Analysis: The City Attorney is charged with representing the City when the City is a party to litigation. On some occasions, litigation requires the City Attorney to engage professionals in the form of specialized attorneys or subject matter experts to assist in the litigation, such as ballistics experts, jury consultants, accident reconstruction experts and the like. The need to also protect and keep confidential the City's defense strategy on cases, which includes City of Huntington Beach Page 1 of 2 Printed on 10/31/2018 906 - powered by LegistarTM File #: 18-472 MEETING DATE: 11/5/2018 hiring certain types of experts and for what purpose, also necessitate non-disclosure. The California Evidence Code, Code of Civil Procedure, Rules of Court and Professional Conduct, the Ralph M. Brown Act, as well as a host of other State Law and rules, govern the strict confidentiality of attorney work, including the retention of legal services and experts, which are both subject of attorney-client and attorney work product privileges. Huntington Beach Municipal Code Chapter 3.03 contracting rules in some cases conflict with State law requirements concerning attorney-client and attorney work product privileges and can hamper the City Attorney's ability to utilize outside legal services and subject matter expert consultants effectively and properly to defend the City. Environmental Status: Not applicable. Strategic Plan Goal: Enhance and Maintain City Service Delivery Attachment(s): 1. Ordinance No. 4169, "An Ordinance of the City of Huntington Beach Amending Sections 3.03.020 and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code Relating to Professional Services Contracts" 2. Legislative Draft of Sections 3.03.020 and 3.03.080 City of Huntington Beach Page 2 of 2 Printed on 10/31/2018 907 powered by LegistarW ACTION AGENDA City Council/Public Financing Authority November 5, 2018 Between the Huntington Beach Management Employees' Organization and the City of Huntington Beach for the period November 1, 2017 through October 31, 2019." Approved 7-0 33. 18-475 Adopted Resolution No. 2018-65 approving and implementing The Memorandum of Understanding (MOU) between the Huntington Beach Firefighters' Association (HBFA) and the City Of Huntington Beach for July 1, 2018 through June 30, 2021 Recommended Action: Adopt Resolution No. 2018-65, "A Resolution of the City of Huntington Beach Approving and Implementing the Memorandum of Understanding Between the Huntington Beach Firefighters' Association (HBFA) and the City for July 1, 2018 through June 30, 2021." Approved 7-0 34. 18-473 Deferred discussion on proposal until the next fiscal year budget process begins - Request to approve a proposal for investigation and prosecution of illicit, unlicensed, and/or nuisance in-home businesses by approving an increase to the City's Table of Organization and appropriation of funds Recommended Action: A)--Anppreve an increase to the Gity's Table of OFgaRiza+inn by 1.0 CeRinFDepputy ttto reyapA, for a s ihient matter export and an imieetinater Approved as amended 5-2 (Semeta, Peterson-No) to defer discussion on proposal until the next fiscal year budget process begins; in the interim, provide a status update on the Community Prosecutor Program, and Memorandum of Understanding with the Orange County District Attorney's Office ORDINANCES FOR INTRODUCTION 35. 18-472 Continued to December 17, 2018 — Request to Approve for introduction Ordinance No. 4169 amending Sections 3.03.020 and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code (HBMC) relating to Professional Services Contracts Recommended Action: 10 ACTION AGENDA City Council/Public Financing Authority November 5, 2018 se FVdGo nontrnntc from bidding roni iircmcntc Approved as amended 5-2 (Semeta, Peterson-No) to continue the item to December 17, 2018 and consider other process options 36. 18-479 Approved for introduction Ordinance No. 4167 amending Section 2.76.010 of the Huntington Beach Municipal Code (HBMC) related to exclusions from competitive service by adding the classification of Assistant Chief of Police Recommended Action: Approve for introduction Ordinance No. 4167, "An Ordinance of the City of Huntington Beach Amending the Huntington Beach Municipal Code by Amending Section 2.76.010 Thereof Related to Exclusions From the Competitive Service" by adding the Classification of Assistant Chief of Police. Approved 6-1 (Posey-No) 37. 18-487 Approved for introduction Ordinance No. 4168 amending the Huntington Beach Municipal Code (HBMC) by adding Chapter 2.104 entitled `Jet Noise Commission' (JNC) Recommended Action: Approve for Introduction Ordinance No. 4168, "An Ordinance of the City of Huntington Beach Amending the Huntington Beach Municipal Code by Adding Chapter 2.104 Entitled 'Jet Noise Commission."' Approved 6-0-1 (Semeta-Out of Room) COUNCILMEMBER ITEMS 38. 18-489 Approved Item Submitted by Councilmembers Semeta and Brenden: Discussion of Potential Withdrawal from PCTA - Transition and Exit Plan Recommended Action: Direct the City Manager to return to City Council with a plan to withdraw from PCTA and transition to a municipal run cable channel. Approved 7-0 COUNCILMEMBER COMMENTS (Not Agendized) Hardy, Semeta, Brenden, Delgleize, Peterson, O'Connell, Posey, reported ADJOURNMENT in memory of Kathy May — 11:25 PM The next regularly scheduled meeting of the Huntington Beach City Council/Public Financing Authority is Monday, November 19, 2018, at 4:00 PM in the Civic Center Council Chambers, 2000 Main Street, Huntington Beach, California. 11 ORDINANCE NO. 4169 AN ORDINANCE OF THE CITY OF HUNTINGTON BEAC AMENDING SECTIONS 3.03.020 AND 3.03.080 OF CHAPTER 3.03 OF HUNTINGTON BEACH MUNICIPAL CODE RELATING TO PROFESSIONAL SERVI S CONTRACTS The City Council of the City of Huntington Beach does hereby ordain as llows: WHEREAS, Sections 3.03.020 and 3.03.080 of Chapter 3.03 of he Huntington Beach Municipal Code (HBMC) as well as AR 228 provides the process to ter into Professional Services Contracts in Huntington Beach. Generally, the process re ires that prior to entering into a contract, the Director of the Department must request writte�proposals from not less than three available qualified consultants known as the "RFP"process/The Director must then evaluate the Consultants and can only hire the Consultant after Vr tting based on criteria established in HBMC Chapter 3.03. The City Attorney is charged representing the City when the City is a party to litigation. On some occasions, litigation requires the City Attorney to,.kngage professionals in the form of specialized attorneys or subject matter experts to assist infhe litigation. The California Evidence Code, Code of Civil Pr�cedure, Rules of Court and Professional F• Conduct, the Ralph M. Brown Act as well as a host offfother State Law and rules govern the confidentiality of attorney work, including the retentj n of legal services and experts, which are both subject of attorney-client and attorney work product privileges. Sections 3.03.020 and 3.03.080 of Chapter 3.03 of the Huntington Beach Municipal Code Chapter contracting rules in some cases conflict with State law requirements concerning attorney-client and attorney work product privileges and can hamper the City Attorney's ability to utilize outside legal services and subject mutter expert consultants effectively and properly to defend the City. SECTION 1. Section 3.03.020 of the Huntington Beach Municipal Code is hereby amended to read as follows: 3.03.020 Definitions "Consultant"means any provider of services under this chapter as an individual, partnership, corporation or otherwise. "Director" means the depa tment head or his or her designee as approved by City Council resolution, vested with the'authority to administer the provisions of this chapter with respect to contracting for service. "Professional Services' means those services that involve the exercise of professional discretion and indepeFdent judgment based on an advanced or specialized knowledge, expertise or training gained by formal studies or experience or services which are not readily or efficientli procured by competitive bidding pursuant to Chapter 3.02. Such services shall include but not be limited to those services provided by appraisers, architects, engineers, instructors, insurance advisors, physicians and other specialized consultants. (2047-5/76, 2590-1/83, 3375-11/97, 3511-10/01, 3604-6/03) 1 ORDINANCE NO. 4169 "Legal Services" means those services that involve the exercise of legal discretion, expertise, and legal strategy based upon advanced and specialized knowledge or sub' ct matter experts for litigation matters which are not readily or efficiently procured by competitive bidding pursuant to Chapter 3.02. SECTION 1. Section 3.03.080 of the Huntington Beach Municipal Code is hereby ended to read as follows: 3.03.080 Exempt and Emergency Procedures -� i The need for certain budgeted and emergency and exempted procurements are recognized. A. An emergency shall be deemed to exist if: 1. There is a great public calamity. 2. There is immediate need to prepare for national or local defense. 3. There is a breakdown in machinery or an essential service which requires the immediate attention of a professional in order to protect the public health, safety or welfare. 4. An essential, departmental operation affecting the public health, safety or welfare would be greatly hampered if the prescribed procedure would cause an undue delay in the procurement of the needed services. In the case of an emergency which requires the immediate retention of a professional consultant, the City Manager may authorize the department director to secure by the open- market procedure, at the lowest obtainable price consistent with professional standards, any professional service regardless of the amount of the expenditure. B. Other Interagency Agreements. Procurements utilizing contractual agreements maintained by other public agencies for the provision of professional services to such agencies are exempt from the requirements of this chapter except that the provisions of Section 3.03.060(C) shall apply in every case and so long as such other agency complied with its own professional services contract requirements as approved by the department director. C. All contracts for performance of professional services for the City which exceed $30,000.00 shall be awarded in accordance with the procedures of this Code. All contracts for professional services which do not exceed $30,000.00, with prior approval of the Director of Finance or his or her designee, may be let without competitive bidding or negotiation. (2047-5/76, 3375-11/97, 3511-10/01, 3734-5/06, 3853-2/10) D. City Attorney Legal Service Agreements. The City Attorney is authorized, and has the authority, to enter into Legal Service Agreements on behalf of the City not to exceed $100,000.00 in any fiscal year. This authority extends to hire attorneys or subject matter expert consultants to.assist the City Attorney for litigation or related matters without having to follow the RFP or other Professional Services recruitment guidelines and the procedures. The City Attorney is exempt from the requirement to remit executed agreements and names of consultants taihe City Clerk as set forth in this Chapter. 2 18-6866/187864/MV ORDINANCE NO. " 169 Legal Services Contracts that exceed $100,000 in any fiscal year require City Council authorization permission for which will be obtained by City Council in Closed Session. The City Attorney may receive such authorization in Closed Session following the Y Ies established by the Ralph M. Brown Act. The City Attorney will provide a quarte0y report with a list of all Legal Service Contracts entered into by the City Attorney for that quarter in Closed Session pursuant to the Ralph M. Brown Act. SECTION 2. This ordinance shall become effective 30 days after its adoption., PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of , 2018. Mayor ATTEST: APPROVED AS TO FORM: City Clerk City Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: JA Cit Manager `' Chief Financial Officer 3 18-6866/187864/MV LEGISLATIVE DRAFT MUNICIPAL CODE Title 3 REVENUE AND FINANCE Chapter 3.03 PROFESSIONAL SERVICES 3.03.020 Definitions "Consultant"means any provider of services under the chapter as an individual, partnership, corporation or otherwise. "Director" means the department head or his or her designee as approved by City Council resolution, vested with the authority to administe�the provisions of this chapter with respect to contracting for services. / "Professional Services"means those services t�at involve the exercise of professional discretion and independent judgment based on an advanced or specialized knowledge, expertise or training gained by formal studip� or experience or services which are not readily or efficiently procured by competitive bidding pursuant to Chapter 3.02. Such services shall include but not be limited t those services provided by appraisers, architects, rs attefneys, engineers, instructo , insuran a advisors,physicians and other specialized consultants. (2047-5/76, 2590-1/83, 33 5-11/97, 3511-10/01, 3604-6/03) "Legal Services" means those servi s that involve the exercise of legal discretion, expertise, and legal strategy based/upon advanced and specialized knowledge or subject matter experts for litigatidn matters which are not readily or efficiently procured by competitive biddinr�pursuant to Chapter 3.02. r SECTION 1. Section 3.03.080/ofe Huntington Beach Municipal Code is hereby amended to read as follows: 3.03.080 Exem t and Emer encedures The need for certain budgeted nd emergency and exempted procurements are recognized. A. An emergency sha be deemed to exist if: l. /,anemergency is a gr at public calamity. 2. is i ediate need to prepare for national or local defense. 3. is breakdown in machinery or an essential service which requires the imm ention of a professional in order to protect the public health, safety or welf 4. ential, departmental operation affecting the public health, safety or welfare wouleatly hampered if the prescribed procedure would cause an undue delay in the pment of the needed services. In the cas emergency which requires the immediate retention of a professional consultanity Manager may authorize the department director to secure by the open- market pre, at the lowest obtainable price consistent with professional standards, any professional service regardless of the amount of the expenditure. 911 B. Other Interagency Agreements. Procurements utilizing contractqalagreements maintained by other public agencies for the provision of profession services to such agencies are exempt from the requirements of this chapter except that the provisions of Section 3.03.060(C) shall apply in every case and so long as such other agency complied with its own professional services contract requirements as appr ved by the department director. C. All contracts for performance of professional services for the City which exceed $30,000.00 shall be awarded in accordance with the procedures of this Code. All contracts for professional services which do not exceed $30,000.00„4rith prior approval of the Director of Finance or his or her designee, may be let without competitive bidding or negotiation. (2047-5/76, 3375-11/97, 3511-10/01, 3734-5/06, 3853-2/10) D. City Attorney Legal Service Agreements. The City Attorney is authorized, and has the authority,to enter into Legal Service Agreements on behalf of the City not to exceed $100,000.00 in any fiscal year. This authority extends to hire attorneys or subject matter expert consultants to assist the City Attorney for litigation or related matters without having to follow the RFP or other Professional Services recruitment guidelines and the procedures. aI The City Attorney is exempt from the req ement to remit executed agreements and names of consultants to the City Clerk as et forth in this Chapter. Legal Services Contracts that exceed $1100,000 in any fiscal year require City Council authorization permission for which will'be obtained by City Council in Closed Session. The City Attorney may receive such authorization in Closed Session following the rules established by the Ralph M. Brown Act. The City Attorney will provide a quarterly report with a list of all gal Service Contracts entered into by the City Attorney for that quarter in ClosQd Session pursuant to the Ralph M. Brown Act. r I' 912